Lecture 14: Te Ara o te Tiriti: Treaty Jurisprudence

Tribunal Jurisdiction and Membership

Initially the tribunal could only hear contemporary claims arising after 1975. •1985 - Powers extended to enquire into retrospective claims arising since 1840. •1988 - Membership increased from three to 17.•Currently comprises 20 members, aproximately half members are Māori, half non-Māori.

R v Symonds 1847

:•Questioned the competence of settlers to buy land directly from Māori, foregoing Crown pre-emption. •Justice Chapman acknowledged and affirmed the status of the Treaty of Waitangi as a constitutional document that had been confirmed by the colony and therefore was relevant in regulating relationships between the Crown, Māori and settlers.

Academic Commentary

Ann Salmond Brief of Evidence Wai 1040 (Ngāpuhi claims hearings 2010). •"two very different documents, with divergent textual histories and political implications; and for that reason, it is a mistake to bracket them together. I have observed that this error has led to a confused and confusing historiography of the Treaty, which should not be perpetuated." Ani Mikaere. (2011)•'One of the greatest misconceptions currently plaguing Treaty jurisprudence is the conviction that Te Tiriti and The Treaty bear some kind of relationship to one another, the common description of them as English and Māori texts of the one document illustrating the ultimate absurdity of pursuing such a view to its logical conclusion. ...Apart from the fact that the...two documents happen to have been drafted and circulated during the same time period, they have absolutely nothing in common with each other...[T]he inextricable connection between He Whakaputanga and Te Tiriti should be acknowledged, and the Treaty seen for the historical irrelevance that it truly is.'

•Te Weehi v Regional Fisheries Officer, High Court, 1986•1986

Cabinet Paper: All future legislation should recognise 'the principles of the Treaty of Waitangi', Government Departments should consult with Māori on all matters that affected the application of the treaty. Treaty of Waitangi Ammendment Act 1985•Criminal Justice Act 1985•Law Commision Act 1985•Environment Act 1986•State Owned Enterprises Act 1986•Māori Language Act 1987•Conservation Act 1987•State Sector Act 1988•Coroners Act 1988•Treaty of Waitangi (State Enterprises) Act 1988•Treaty of Waitangi Ammendment Act 1988•Māori Affairs Restructuring Act 1989•Māori Fisheries Act 1989•Crown Forest Assets Act 1989•Education Act 1989

Waitangi Tribunal: Origins

Emerged as a consequence of social ferment: •The radical politics of the 60s and 70s•Māori activism •Renewed academic interest•The Tribunal was the brainchild of Rātana Labour MP Matiu Rata, established via the Treaty of Waitangi Act 1975. Permanent commission of enquiry, not a court. •Function: "To enquire into claims laid by Māori against the Crown that they have been prejudicially affected by government legislation, policy, action or inaction that is inconsistent with the Treaty"•Publishes its findings as reports, findings are recommendations only, non-binding.•One exception: State Owned Enterprise and Crown forest lands. Exercised once in Turangi Township Report 1997.

New Zealand Māori Council v Attorney General (The Lands case)

Fourth Labour Government introduced Rogernomics, a series of radical far right free-market reforms.•Established SOEs, which transformed government departments and agencies into privatized companies.•Crown lands were to be passed over to these companies and privatised by May of 1987. Māori were engaged in the process of reclaiming Crown lands as part of treaty settlements. The New Zealand Māori Council took an injunction to the High Court to stop the transfer of these lands until claims over them had been settled. •SOE Bill, Section 9: 'nothing in the Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi'. •All five judges agreed unanimously that the Treaty of Waitangi, as given effect in Section 9, prevented the Crown from transferring lands to SOEs without first protecting Māori interests. High Court also attempted to define the principles: •Partnership: Crown and Māori are to act reasonably and in good faith.•Active Protection: Duty of Crown to actively protect Māori interests in land and water rights.•Government must make informed decisions in relation to the treaty.•The Crown must remedy past grievances Kāwanatanga principle: Crown had a right to govern uninhibited by the treaty but must make laws that were guided by the principles and meet the needs of the day. •Walker: Pitched New Zealand 'firmly into the post colonial era', 'the beginning of decolonization of New Zealand'. •Justice Robin Cooke: perhaps the most important case that had ever come before a New Zealand Court.

Huakina Development Trust v Waikato Valley Authority 1987

Naniko Minhinnick of Ngāti Te Ata from Manukau Harbour brought a case to the High Court against the Waikato Valley Authority for granting a water right to discharge dairy effluent into the Waikato River. •Minhinnick argued that the river was a taonga, a valued possession of the iwi as a resource that provided physical and spiritual sustenance, and as a taonga it was protected by Article 2 of Te Tiriti. Judge Chilwell's findings were enlightened•While the treaty had not been incorporated into legislation it was 'part of the fabric of New Zealand society' and could be used as an 'extrinsic' aid to interpret legislation.•Represents a shift away from the Prendergast ruling.•Ranginui Walker :•'a watershed in the modification of monocultural interpretation of law, to take account of the two main streams of New Zealand culture which have their founding charter in the Treaty of Waitangi'

•Wi Parata v Bishop of Wellington 1877

Ngāti Toa gifted land to the Church of England for educational purposes. The Church had not used the land for that purpose. Parata sought the return of those lands on the grounds that they were customary lands.•Justice James Prendergast: •Māori customs were primitive and could not be recognised in law.•'the whole treaty was worthless - a simple nullity pretended to be an agreement between two nations but was between a civilised nation and a group of savages'.•For 70 years, Prendergast's ruling dominated treaty jurisprudence. Māori attempts to address treaty grievances were blocked by this legal precedent.

Te Heuheu Tūkino 1941

Ngāti Tūwharetoa had been sued for damages by a timber country. •Te Heuheu Tūkino took the case to the Privy Council, arguing that the legislation under which the debt had occurred went against te Tiriti and was therefore invalid. •The Law Lords of Britain took a different approach to their settler counterparts, ruling that the treaty was only enforceable if it was incorporated into domestic legislation.•Set a new legal precedent and gave Māori a target to set their sights on: incorporation of Te Tiriti into law.

.Conclusion

Te Ara o te Tiriti has been a long and twisting path, from constitutional document, to simple nullity, to extrinsic aid. •Until Te Tiriti is entrenched constitutionally its status will remain at the discretion of the Crown, the whim of the Pākehā public, and the interpretation of the judiciary. •Treaty jurisprudence focuses on principals, avoiding Te Tiriti and it's provision of tino rangatiratanga. •Waitangi Tribunal remains disempowered, under-resourced and under threat of abolishment. •Crown policy since 1990 has focused on repealing statutory rights and extinguishing Māori claims

UN Special Rapporteur Recommendations 2006:

The 'Treaty of Waitangi' should be entrenched constitutionally in a form that respects the pluralism of New Zealand society, creating positive recognition and meaningful provision for Māori as a distinct people, possessing an alternative system of knowledge, philosophy and law.•The Waitangi Tribunal should be granted legally binding and enforceable powers to adjudicate Treaty matters with the force of the law.

Tribunal Reports

To date the Tribunal has produced 143 reports on their findings. •Rewritten the history of this country, unearthing shameful accounts of colonial violence, theft and neglect of tangata whenua that have long remained buried, ignored and denied.•Challenged myths that New Zealand was settled peacefully and enjoyed the best race relations in the world. •Almost all reports demonstrate gross breaches of the treaty and in many cases, that Crown actions were also illegal and/or inconsistent with the rule of law

Development of the Tribunal

Tribunal achieved little in it's first five years: 'window-dressing' 'non-event' 'toothless-tiger'. •Transformed from 1980 with appointment of Sir Eddie Durie as chairman.•Early reports 1983-88 largely dealt with environmental issues: Motunui, Kaituna, Manukau, Mangonui etc. •Early hearings were inquisitional, took place on marae; most claimants giving evidence were kaumatua and presented in Te Reo. Claimants held the mana, hearings were emotionally charged, but they took place under tikanga. •Tribunal again transformed 1985 - 88 with retrospective powers to 1840, more members, more resources. From 1988 Tribunal began dealing with resources and land: Muriwhenua Fisheries, Ngāi Tahu etc. Pākehā backlash against Māori and the Tribunal begins.•Hearings became increasingly more adversarial, lawyers began to dominate proceedings. Crown lawyers began challenging all evidence presented by claimants.•1990 onward: Crown reassert control over treaty settlements and undermine role of tribunal.•2000 onward: Tribunal further hamstrung by urgency hearings as iwi begin opposing treaty settlements. Tribunal struggle to complete lengthy historical reports, some recent reports published after settlements have been reached.

Principals of the Treaty of Waitangi

Tribunal has to show government actions were inconsistent with the principles of the Treaty of Waitangi. •Preamble of Act: 'the text of the Treaty in the English language differs from the text of the Treaty in the Māori language'. Tribunal's role 'to make recommendations on claims relating to the practical application of the principles of the Treaty'. •The Tribunal's role is to define the principles within its reports.

Recap: Te Tiriti and the Treaty in 1840

Two different documents were drafted and signed in 1840. •The Crown regarded the Treaty as a cession of sovereignty. •Rangatira regarded te Tiriti as an affirmation of tino rangatiratanga. •These two documents created conflicting understandings of what was agreed to in 1840, and diverging historical traditions.•Treaty jurisprudence since the 1970s has assumed that there is a relationship between Te Tiriti o Waitangi and the Treaty of Waitangi and that these two documents can be 'read together'.

Potential Questions for Test 2 and Exam

Why is the concept of 'the principles of the Treaty of Waitangi' problematic? •What was the significanceofR v Symonds 1847?•What was the significance of the Prendergast ruling?•What wasthe significanceof Te Heuheu Tūkino 1941? •What was the significance of the 'Lands' case? •What is the role and function of the Waitangi Tribunal? •Be specific: vague generic answers will earn zero marks.